[Extracted from Legal & Con Senate Hansard, 10 February 2003, pp.138-156]

Senator JACINTA COLLINS-At the previous estimates I asked Commissioner Keelty to update the committee on the pursuit of Abu Qussey. Given some of the more recent developments, it may be appropriate for the minister to deal with that in the broader context than just the AFP.

Senator Ellison-There is, of course, an AFP side to it as well as Attorney- General's and Foreign Affairs. Perhaps I can give you a broader picture and then Commissioner Keelty can fill in the details in relation to the AFP.

Senator JACINTA COLLINS-I was just hoping to avoid duplication.

Senator Ellison-I can certainly say that the question of Mr Abu Qussey was a matter that I raised with the Indonesian minister for justice, when I visited Indonesia, and with the minister for foreign affairs in Indonesia.

Senator JACINTA COLLINS-When was it that you visited the minister for justice?

Senator Ellison-I visited Indonesia in December last year and also after the Bali bombing-I will double-check that and alter that if it is incorrect but I think it is right. Certainly I believe that Minister Downer raised it with the Indonesian government as well. The government is firmly committed to having Mr Abu Qussey front an Australian court and answer the charges against him. The government, as recently as a few days ago-last week-sent a team of experts to Jakarta for extensive discussions with Indonesian officials to examine a possible means of extraditing Mr Abu Qussey. Those officials met with Indonesian officials. I believe that we have had good cooperation from the Indonesians. The trouble we have is that the extradition arrangements that we have with Indonesia provide for dual criminality, like other extradition arrangements with other countries, and people-smuggling is not a crime in Indonesia, albeit that there is proposed legislation in the Indonesian parliament dealing with people- smuggling. We have taken a number of steps to take measures in case Mr Abu Qussey is returned to Egypt. He is an Egyptian national and there has been discussion on whether he goes back to Egypt. In fact, where he goes is a matter for the Indonesians. We have taken measures in relation to transit countries which might be places where Mr Abu Qussey would go in any prospective return to Egypt. Our priority is that he would come to Australia, but if there is a decision by the Indonesian government to send him to Egypt then we have other measures in hand. We have issued a red alert with Interpol. That is another measure that we have taken in relation to Mr Abu Qussey. I think it is fair to say that throughout this whole matter we have stressed with the Indonesian government that we want Mr Abu Qussey to face justice in Australia. I also signed a provisional warrant for his arrest. That was delivered to the Indonesian government just a few days ago, and I believe the justice minister in Indonesia has confirmed that. On 15 January, we also made a request to the Indonesian government for mutual assistance. That is under mutual assistance arrangements that we have with Indonesia. That sought the provision of copies of documents seized by Indonesian officials, permission to interview Mr Abu Qussey and several other matters which would assist us. There are four summonses, and I will leave it to the AFP to discuss what he is wanted for and the steps that the Australian Federal Police have taken. Suffice to say that the minister for foreign affairs and I have made it personally known to the Indonesian government that we are keenly interested in having this man front justice in Australia.

Senator JACINTA COLLINS-Perhaps before we move into the detail of some of what you have just covered there-and I understand Mr Keelty would probably be best to deal with some aspects of it-can I ask you to address a concerning report in the Sydney Morning Herald on 1 February, suggesting that Australia's ambassador had never talked to the minister for justice in relation to the case of Abu Qussey. Is that your understanding of the matter?

Senator Ellison-Mr Ritchie, I understand, spoke to the minister for justice the other day. I am not sure if he has been made ambassador yet or if he is the charge d'affaires, but certainly he is our representative in Jakarta, and he spoke to the minister for justice about this matter.

Senator JACINTA COLLINS-The reason I have a concern is that there seems to be some contradictory reporting on this case.

Senator Ellison-You might want to check the date of that article. What is the date?

Senator JACINTA COLLINS-The date was 1 February, but bear with me for a moment because, for instance, by the time I get to a report in the Jakarta Post on 6 February, it is reported that the minister for justice is claiming the Australian Ambassador to Indonesia, David Ritchie- so he may have been ambassador at that stage-had met with him several times to discuss the matter. I am unclear as to whether this confusion is because there have been several more recent meetings or whether the minister for justice is describing meetings in relation to his other concerns- extradition of Raharja-as matters of earlier discussion with the Australian ambassador.

Senator Ellison-I have discussed Raharja both with the Indonesian Minister for Foreign Affairs and Dr Mahendra. In the discussions that I previously had, Mr Ritchie was at one lot of discussions and I am sure that the previous ambassador, who is now Secretary of Defence, Mr Ric Smith, was present. So certainly I have been present when our ambassadors, our diplomatic representatives, have been present and there have been discussions. I am aware of another meeting taking place-the one I have just mentioned in relation to Mr Ritchie, where he met with the minister himself. There may have been some other meetings which I am not aware of, and I would have to take that on notice and check with Foreign Affairs.

Senator JACINTA COLLINS-The reason that I am concerned about this report on 1 February by Matthew Moore, who is the Herald correspondent in Jakarta, is that it also indicates that no Australian minister had been in direct contact about the matter, and he was suspicious about the reasons why Canberra had not made a more determined effort to bring Qussey to Australia. From what you said a moment ago, you dispute that assertion.

Senator Ellison-Certainly I know what I said. I was at the meeting in December. I remember it vividly and I remember raising the matter of Mr Abu Qussey. In fact, at the other meeting in October there were many officials meeting-Ms Fagan was at the same meeting and recalls that too, I believe. That is at the December meeting and it was certainly at the October meeting as well. I do not know what the journalist had in mind when he reported that in the Jakarta Post, but I know what I said and what was said at the meeting.

Senator JACINTA COLLINS-There were a number of similar reports around that time. This particular one in the Sydney Morning Herald was perhaps the most detailed. The reason I am asking these questions concerns the extent that you believe there is cooperation on the Indonesian side to further our concern in relation to Abu Qussey. Perhaps you could comment on that point. You mentioned in your earlier remarks that you believed that there was cooperation, but the nature of these reports coming from the minister of justice would, I think, leave any reasonable person with questions.

Senator Ellison-There are, of course, reports in the press and I always check what I read in papers these days, whether they are Indonesian or Australian. You often get lazy journalists who just write stories about what other journalists write. Unfortunately, you get that all the time these days, and a lot of them never bother to check with the people they are writing about. I am frequently writing to editors about things that are written in the paper without even having been checked with me.

Senator JACINTA COLLINS-As you noted earlier this evening.

Senator Ellison-Yes, as I noted earlier this evening. I always say I would rather hear it from the person themself rather than going off half-cocked in relation to a report in the paper. But can I say this: with that level of officials I believe we had a constructive discussion the other day. The Australian Federal Police can touch on the cooperation we have had at a law enforcement level.

Senator JACINTA COLLINS-Sorry, minister, which day is this that you are referring to?

Senator Ellison-It is that of the recent visit by officials. I can get the dates for you. We had Attorney- General's reps there. It was last week, about 3 February. I believe there has been cooperation with the Australian Federal Police. The police can touch on that. Certainly it was not a case of Mr Abu Qussey serving his sentence and then being released from Indonesia without notice to Australia. That did not happen. He has been detained in Indonesia, the Indonesians have been looking at the situation and it has been indicated to us that a decision has not been made. That was my last information as to whether he would be sent back to Egypt or what would be done with him. I take that as a government taking the matter seriously. I understand there have been discussions between the Indonesian government and Egypt as to whether Mr Abu Qussey would be prosecuted in Egypt. I think that indicates on the part of the Indonesians a concern as to the matters alleged against Mr Abu Qussey.

Senator JACINTA COLLINS-Minister, the most recent media reports suggest that the Indonesian government is looking to make its decision before the Prime Minister visits there next Friday. Is that also your understanding?

Senator Ellison-I would not pre-empt-it would be inappropriate for me to do so-any decision by the Indonesian government. As I say, the matter of where Mr Abu Qussey goes is a matter for the Indonesians. Unfortunately, the extradition arrangements do not have dual criminality here. There are a number of options that we are looking at. I am not going to canvass them, for obvious reasons-I am not going to signal our shots to Mr Abu Qussey or his lawyers-but certainly the Prime Minister will be meeting President Megawati when he goes to Indonesia in a few days time.

Senator JACINTA COLLINS-Given the previous reporting, you can understand why I would ask the question: is the press being accurate in its report that before our Prime Minister visits the country they would make a decision on this matter. Can I take it as your answer that you have no knowledge that that is their position at this stage?

Senator Ellison-That is a really a matter for the Indonesians. I have no knowledge as to whether a decision will be made or what that will be.

Senator JACINTA COLLINS-The Indonesian government has not said directly to you, `We will be making a decision before next Friday'?

Senator Ellison-No, it has not said that.

Senator JACINTA COLLINS-Do you know if this matter is on the Prime Minister's agenda to be discussed with the Indonesians when he is there next week?

Senator Ellison-I think I will have to take that on notice. Certainly what the Prime Minister raises with the President of Indonesia is a matter for the Prime Minister. I cannot speak for the Prime Minister.

Senator JACINTA COLLINS-I appreciate that, but equally it would be a clear signal of the level of significance Australia places on this, were that to be the case.

Senator Ellison-As I say, it has been raised by the Minister for Foreign Affairs and by me.

Senator JACINTA COLLINS-To go back to the issue of the provisional arrest: what is the nature of that warrant?

Senator Ellison-That warrant is normally issued in proceedings where you are about to extradite someone or seek someone's extradition. It is more or less a holding warrant, if I understand it correctly. It signifies to a country that the person is of interest, and to arrest them on that basis. Perhaps we have someone from extradition here.

Ms Warner-A provisional arrest warrant signals to the country, in this case Indonesia, that Australia will be making a formal extradition request. That is the purpose of that. Normally, under the treaty, that is to be done within a certain number of days.

Senator JACINTA COLLINS-Can you advise us why that was not made earlier in the process?

Ms Warner-The minister referred to the issue of dual criminality, and the fact that there is presently no people smuggling legislation in Indonesia. The provisional arrest warrant that we have is for other offences.

Senator JACINTA COLLINS-Is there any reason why those other offences could not have been made the basis of a holding warrant earlier?

Ms Warner-That is probably a question for the AFP, in terms of the nature of the warrant.

Senator Ellison-Could I just say at this point that one should remember that Mr Abu Qussey was in custody until 1 January, so he was not going anywhere until 1 January. The urgency of the situation arose once he had served his sentence. He was then detained on some other matters by the Indonesian government. Certainly he was serving a sentence, and the situation last year was quite different from when he had served his sentence. On the question of these other matters, the AFP can answer that.

Mr Keelty-We are perhaps going to be at odds here with the answer that the minister previously gave, in terms of not flagging to Qussey what is being considered. I would not want to make it public yet. In terms of other charges, obviously what we are trying to do is to exhaust every avenue. The AFP issued four further warrants for the arrest of Qussey on 6 December 2002, for offences of attempting to bring unlawful citizens into Australia-

Senator JACINTA COLLINS-I think we might have covered those previously.

Mr Keelty-Okay. So what we are doing now in the negotiations with the Indonesian government is seeing whether any other offences where dual criminality might exist could apply.

Senator JACINTA COLLINS-My question, Mr Keelty, is this: between 1 January and yesterday, when this provisional arrest warrant was issued-

Senator Ellison-It was some days ago that I signed it.

Senator JACINTA COLLINS-It was perhaps a few days ago, but we certainly had a period of more than a month when the only thing we were relying upon were these four further warrants that were issued on 6 December. My concern is that, as I understand the situation, Mr Qussey could have returned to Egypt without going through any country that would trigger your red alert, and he would have been able to successfully flee any net that the AFP might have thought was in place. So I am trying to understand why we would not have put this provisional arrest warrant in place sooner.

Senator Ellison-Perhaps Ms Warner can add to that.

Ms Warner-Yes. It was only recently that Indonesian officials indicated that, as there were no comparable people-smuggling offences in Indonesia, it would not be possible to satisfy the dual criminality requirement for extradition. It was not until 3 January that our officials in our embassy in Jakarta were advised that Indonesia would in principle have no objection to the Australian request for extradition. That was based on two policy changes. The first was that Indonesia would extradite under the discretionary clause in the Australia-Indonesia extradition treaty. Our treaty is what is known as a list treaty, with specified offences under it, but there is a discretionary clause. Hitherto, the Indonesians had not been willing to use that discretionary clause, but they indicated on 3 January that they would be willing to do that. The second would involve being able to establish dual criminality for Abu Qussey's conduct, based on offences other than the people-smuggling offences.

Senator JACINTA COLLINS-As Mr Keelty said, I would be the last person to want you to make public anything that is going to give Mr Qussey the opportunity to anticipate what we are doing, but is it possible to detail those other crimes without compromising your position?

Senator Ellison-That would be difficult. Madam Chair, it really does put us in a difficult position because it signals what we are doing in relation to this matter. Senator Collins, if you would undertake to keep it confidential, we would be willing to give you a private briefing on those matters. You mentioned Mr Abu Qussey going directly to Egypt. The inquiries we made found that there was no direct flight from Jakarta to Cairo and that he would have to have been in transit in another country to take that flight. We have heard second hand that the Egyptians were looking at some arrangements to return Mr Abu Qussey by a direct flight. But that information was only second hand.

Senator JACINTA COLLINS-Do we understand what crimes the Egyptians are proposing they might be prepared to prosecute him with?

Ms Warner-We do not think the Egyptians currently have people-smuggling offences on their statute books. That is about the limit of our knowledge.

Senator JACINTA COLLINS-So we do not know what other offences they may have contemplated in assurances to the Indonesian government?

Ms Warner-At this stage, no; we have no information on that.

Senator JACINTA COLLINS-Thank you, Minister. I will contemplate your offer of a private meeting, but I would want to be very cautious to put some fairly clear boundaries around what issues would need to remain within a confidential briefing environment. If you will bear with me, I will give that some thought and come back to you on that. On the issue of where we are with Mr Qussey, that probably exhausts what you can deal with if you are not in a position to talk about options at this point. The other question in my mind relates to the team of experts that visited Indonesia last week, and to timing. Why did that occur well after the 1 January date expired? Why was that process not in train sooner?

Ms Warner-We had earlier submitted our mutual assistance request to Indonesia and they had taken a number of days to consider that and then had come back to us and said, `We will advise you when a delegation would be welcome.'

Senator JACINTA COLLINS-For instance, the request that went on 15 January, I think the minister said, was that the one that was finally successful, having regard to the visit that occurred recently?

Ms Warner-Yes. One of the other reasons was that Minister Mahendra, the minister for justice, said that he would be going on leave for three weeks or that he would be otherwise occupied for three weeks.

Senator JACINTA COLLINS-Mr Keelty, this is a point that relates to some discussions we have had in the past about what options might become available. Because I know it has been the subject of a fair amount of public discussion about what was meant there, I want to give you the opportunity to clarify these comments that you made in the CMI hearings on 11 July 2002. You said, when talking about how we might be able to prosecute Abu Qussey: In this circumstance it is important to note that the criminal prosecution may not be dictated by where the vessel sank but it may be determined by the vessel's intended point of arrival. Can you explain why the intended point of arrival might have been relevant and why it may have lost its relevance in the meantime, given the discussion and the answers that were given to my last questions on notice?

Mr Keelty-From memory, I was trying to explain that under the Customs Act you can have an offence created for the point of departure or, if there is some question of jurisdiction, the point of arrival. It happens under the Crimes (Aircraft) Act. So there is some legislation dealing with jurisdiction regarding an intended point of arrival. The other point is that the issue of jurisdiction was unknown. I might have mentioned at the time that we were seeking advice from the Attorney-General's Department. So it was in that context.

Senator JACINTA COLLINS-Does that mean that today the issue of the vessel's intended point of arrival may still be relevant to the options that you may be able to pursue other than people-smuggling?

Senator Ellison-We would not want to go into that because you would be writing a defence for Mr Abu Qussey and his lawyers. I am certainly not going to do that.

Senator JACINTA COLLINS-As I said, Minister, it has been a matter that has been a quandary since

Mr Keelty raised it publicly in the first place. I am seeking to find out whether it is resolvable without compromising the pursuit of Mr Qussey. If it is not, I can accept that. As I said, it has been a point to muse since it was raised in the first instance. If we cannot get an explanation at this stage because we cannot canvass the options, I accept that point. In dealing with that matter, Mr Keelty, you indicated that the AFP was currently interviewing witnesses in Australia. When were those interviews conducted?

Mr Keelty-I will take that on notice, Senator. I am happy to give you the dates of the interviews of each of the persons.

Senator JACINTA COLLINS-The reason that I am trying to understand that is that in your answer to my questions on notice last time you indicated, regarding my query in relation to whether there was a radio on board the ship, that one witness statement had referred to the presence of a radio being on board ship. I am wondering whether that was the same set of witness statements or when it was that we first came across an understanding that at least one witness believed there to be the presence of a radio on board the ship.

Mr Keelty-Senator, do you know what the number of that question on notice was?

Senator JACINTA COLLINS-My copy comes from the booklet and it refers only to number seven of eight. There were only three that related to my questions, as I recall. The question was: does the AFP have ex post facto knowledge from talking to survivors? Are there survivor reports that there was communication between SIEVX and the mainland? Unfortunately there is no number on it. I will check another brief.

Mr Keelty-Again for clarification: was this a question on notice from the hearing on 20 November last year?


Mr Keelty-I do not seem to have that question as a question on notice.

Senator JACINTA COLLINS-I am sorry, I am wrong. It was a question on notice from the CMI hearings. My apologies.

Mr Keelty-So it is from July last year?


Mr Keelty-I am not trying to avoid answering the question, but I would just need to have a look at those questions on notice, if I could, from July last year. I have not got them here.

Senator JACINTA COLLINS-Okay. There is nobody, I presume, who could deal with it at this stage? Perhaps the secretariat may be able to provide-

CHAIR-We have answers in questions on notice taken in relation to estimates hearings of this committee, Senator Collins, but not necessarily the CMI hearings.

Senator JACINTA COLLINS-Not the CMI, no. Mr Keelty, I can give you a copy of mine, but I am not sure that that then helps you take it much further.

Mr Keelty-You have your question and my answer?


Mr Keelty-I am happy to try and help you. Now that I have read this, what was your question, Senator?

Senator JACINTA COLLINS-My question is: does the reference to survivor statements in that answer pertain to survivor statements that were done at about the same time that we were talking about a moment ago with respect to the answer you had also given regarding the vessel's intended point of arrival, or does it relate to earlier witness statements? I am trying to ascertain when information from a witness statement that there was believed to be a radio on board SIEVX first came to the AFP's attention.

Mr Keelty-I can see from the answer here that the AFP has interviewed five survivors from SIEVX and, of those, four statements have been taken. It goes on to say: In those accounts there have been no specific references to radio distress calls. One statement has referred to the presence of a radio being on board the ship. What I would have to do is find out who prepared this answer and where they got that information from. In relation to where the ship was going to land, again, without the transcripts of the CMI hearing in front of me-and I put that caveat on it-I am not sure that I would have linked the two, but you might have a better context than I have.

Senator JACINTA COLLINS-The only reason I am linking the two is that the only time that I am aware of there being witness statements taken from four and five interviews was back in Australia well after the sinking had occurred. That answer seems to imply that that is in one of those statements. I would be pretty confident that the AFP spoke to survivors after the return of the ship to Indonesia, but that answer seems to imply that that information came to the AFP's attention through one of the written statements from five witnesses spoken to in Australia, akin to this discussion that we had earlier about your attempts to determine the vessel's intended point of arrival.

Mr Keelty-I see your point. Again, without knowing who prepared the answer and whether they actually prepared it from the statements given by the witnesses-I assume they did-I am not sure I can answer your question now. I would need to have a look at what these witnesses said and whether that was what was factored into this. I agree with you, though, Senator. From reading this answer, it would appear that one of the statements does refer to the presence of a radio on board the ship. I understand your question to be: was that the first time the AFP became aware of a radio possibly being used on the ship?


Mr Keelty-Can I take that question on notice? Certainly, from my knowledge, I would have thought yes, but I need to check.

Senator JACINTA COLLINS-Unfortunately, this is an issue that arises also from a discussion that we had in PM&C this morning. We finally received a cable that we sought through the CMI process six months ago. That cable has indicated a number of things about radio contacts. That cable was sent to a very broad distribution list, including to you. I understand that you personally may not have read it, but my concern is that, in the conversation that we had about radio contacts and your response to that question, you were quite clear that in your view you had no knowledge of there having been a radio or radio calls, but you took it on notice and took it back to the AFP to clarify that point. That answer was the result.

What we now know is that, according to a DFAT cable of 23 October-and keep in mind that 23 October is very shortly after the incident-there was a radio communication made between the ship's crew and Abu Qussey. I think it was about five kilometres out from their original departure point. There was another radio contact that we were aware of from the crew of one of the vessels that picked up the survivors, which would make one wonder why the sinking point of the vessel was so difficult to come by. If, on 23 October, we were aware that a radio call had been made from a ship from which they had picked up 44 survivors back to the owner of that vessel, I am at a loss as to why we cannot identify where that radio call had been made from.

Would you care to comment?

Mr Keelty-I cannot comment, other than to say that, when you put those questions on notice, we got them answered and that was the answer that was provided to me. In respect of the cable, I am not sure I know which cable you are talking about. But you are quite right, Senator: I do not see all cables. In fact, I see very few cables. Other staff read the cables and bring the critical ones to my attention.

Senator JACINTA COLLINS-Let me go back to the issue of radio contact. The reason this is so critical is that it was raised as something about SIEVX at the time by many of the commentators, and it was an issue that I thought was important enough at the time to give AFP, amongst others, an opportunity to respond to. The question I asked back in July was whether you were aware or had any knowledge of radio calls from SIEVX to the mainland. Your response was, `The answer is no.' I asked, `No knowledge at all?' You replied, `No knowledge at all.' I then asked, `Ex post facto knowledge from talking to survivors?' You said: We don't have specific ex post facto knowledge that we can put our hands on tonight, but I undertake to you that if we do I will come back to Senator Cook and advise him. You then took that away and we now understand from this cable that has been lost for six months that a communication did go to the AFP. In fact, the communication went much more broadly than to the AFP. The concerning aspect of this particular cable is that it went to the Prime Minister, the Attorney-General, the Minister for Justice and Customs, yourself, the Minister for Foreign Affairs, the Minister for Defence, Mr Cornall at A- G's, Mr Woodward, the Minister for Trade, the Minister for Immigration and Multicultural and Indigenous Affairs, Mr Richardson at ASIO, Rear Admiral Bonser-I could continue through an extremely broad list right across bureaucracy and government that appeared before the CMI committee. Despite that, the answer to the question that I asked, which was fairly straightforward- whether we had any knowledge of radio communication from the SIEVX-was no, and remained no once I had given an invitation to please check and assure yourselves that there was not something that indicated to the contrary. Six months later, finally, a document appears that was given very broad and quite important circulation which says, `Yes, we did.' As you said, you may not have read every cable to the AFP, but I seek an explanation because it was you that I asked directly the question as to why, when this question was taken on notice, this cable did not come to attention.

Mr Keelty-Senator, all I can say is that I answered, and always have answered, questions in relation to this and any other questions asked before this committee honestly and to the best of my knowledge. It has always been my understanding that the first we knew of SIEVX was when survivors reached shore and word started to get around regarding what had occurred. Let me make sure that I have got this right: you are telling me that that cable says definitively that there was radio communication between SIEVX and Abu Qussey and that there was radio communication between one of the fishing vessels and the shore.


Mr Keelty-That is the first that I have heard of that. I now need to ask who prepared this answer and whether they had access to that cable in the preparation of the answer-and, if they did not, why not. I undertake to do that, Senator.

Senator JACINTA COLLINS-Yes please.

Senator Ellison-Can I confirm my evidence, Madam Chair, now that I have checked the matter. I raised the matter of Mr Abu Qussey with the Indonesian government when I visited Indonesia in October with the Minister for Foreign Affairs. I can confirm that. I think I said I would check it.

CHAIR-Yes, you did, Minister. Thank you for that.

Senator Ellison-It was well before his release from prison, and I raised it in December with the Minister for Foreign Affairs and the minister for justice.

CHAIR-Thank you for confirming that, Minister.

Senator JACINTA COLLINS-Mr Keelty, I am in a broader quandary over this cable because it provides some far more detailed information as well which leads one to question what intelligence was available in relation to the SIEVX. One example of that is that it discusses a makeshift upper deck that had been added, with the afterdecks enclosed by chipboard. The comment is `presumably to enhance seaworthiness'. My question on reading that would be: how, on 23 October, were we aware that this makeshift upper deck had been added and when had it been added? Was it because we had prior knowledge before the ship's departure that it had been added, as appears to be implied, or was it because a survivor report said, `We think it was added'? There are a series of other questions in relation to this cable that I think raise some very serious concerns about the quality of information that was provided to the CMI inquiry. I can go through them now one by one, but from what I can gather you are not in a position to comment because you do not recall this cable at all. Is that correct?

Mr Keelty-That is correct, Senator. You are giving me information tonight that I was not in possession of. Not only did I not possess the knowledge of the contents of the cable; I was not provided with them in the briefings that I was given. Clearly this answer that was prepared in response to your question on notice does not canvass that issue; it canvasses the issue of what appears to be a witness statement referring to the presence of the radio being on board the ship. It does not point out anything beyond that in terms of transmissions or what have you.

Senator JACINTA COLLINS-Let me give you one example of the detail of this report. I am sure you will understand why I am as concerned as I am having now received that detail. This communication, by the way, was restricted so its classification is not significantly high in terms of our request for it to be declassified. Item 4 of this communication read as follows: Thursday 18 October-The vessel departed Bandar Lampung at approximately 0130. At this time, due to the size of the vessel, 10 PIIs refused to embark, leaving 421 PIIs on board. Approximately one hour after departure, PIIs apparently became apprehensive about the ability of the vessel to remain afloat with the numbers onboard. The vessel stopped approximately 5 kilometres from the point of departure, during which time the crew was in radio contact with Abu Quassey. The vessel then resumed its passage and about 0900 again stopped near an island `due to high seas'. A nearby fishing boat came alongside the vessel to remove 24 PIIs (397 pax remaining). That is the first reference to radio communication from the vessel to Qussey.

CHAIR-Senator Collins, are you reading from a cable that was given to you in the PM&C estimates this morning?

Senator JACINTA COLLINS-No. The cable was provided to the CMI committee last Monday.

CHAIR-Last Monday?




CHAIR-But it is not a cable that Commissioner Keelty has been provided with for the purposes of this discussion, is it?

Senator JACINTA COLLINS-No. It is a cable that he has seen, or that his office had received, in the past.

CHAIR-I am concerned that in terms of this evening's discussion he is at a significant disadvantage when you are reading lengthy quotes from a document he is not privy to.

Senator JACINTA COLLINS-In the past, Mr Keelty has always let us know if he feels that that is compromising his position.

CHAIR-I am sure that is the case, Senator Collins, but I would prefer to make sure that the witnesses before the committee have as much information as possible is available to them.

Senator JACINTA COLLINS-I am happy for a copy of this to be provided.

Senator Ellison-It might make it easier. What was the date of the cable?

Senator JACINTA COLLINS-23October.

Senator Ellison-Which year?

Senator JACINTA COLLINS-2001. It was the day that the sinking became known. Mr Keelty, so that you are not at some level of disadvantage, the reason this matter was before the PM&C this morning was that we sought an explanation for why it had taken six months for this cable to be made available. The explanation we received was that there was, firstly, an administrative error within the PM&C and, secondly, a dispute over whether all the recipients should have been blanked out before it was provided. That dispute was eventually resolved earlier this year and we were provided with a copy of the cable, without the recipients having been blanked out, on Monday last week.

Senator Ellison-I might remind the committee that the time of the cable issue was during the election campaign. Of course, mention is made of it going to a number of ministers, but the government was in caretaker mode and the dissemination of information was not as it usually is. I want us to remember that the government was in caretaker mode at that time, so it would not have enjoyed the same circumstances as it otherwise would have in the course of normal government time.

CHAIR-The document has been passed to Commissioner Keelty.

Senator Ellison-I want to add to the record. I mentioned a red notice that had been issued through Interpol. That was issued on 11 September last year-it was not recently done.

CHAIR-Thank you for clarifying that, Minister.

Senator JACINTA COLLINS-Mr Keelty, the point I was making about the radio contact is at point 4 in that document. The next discussion of radio contact at this time from one of the vessels that collected survivors is at point 8. The question that remains in my mind, and there may well be a reasonable explanation, is: if on 23 October we were aware that radio contact occurred between one of the vessels collecting survivors and the Chinese owner, why couldn't we be aware of their precise location?

Mr Keelty-Can I go back over that again?

Senator JACINTA COLLINS-Halfway through paragraph 4 it says:

The vessel stopped approximately 5 kilometres from the point of departure, during which time the crew was in radio contact with Abu Quassey.

Again, without compromising any pursuit of Abu Qussey, my concern is that that is a pretty clear indication that on 23 October we were aware that the crew was in radio contact with Abu Qussey. The obvious question that follows from that is: what communications occurred around the time of the sinking if there was an operational radio on board the ship?

Mr Keelty-Yes, and whether it was able to contact anyone. Paragraph 8 says that the crew of the first boat contacted their Chinese owner for instructions. You are making an assumption that that was by radio.

Senator JACINTA COLLINS-Yes, it could have been a mobile phone. But the point remains: we were aware that that communication occurred. If we were aware that that communication occurred, why could we not be aware of the precise latitude and longitude, whatever the seamen terms are, of where it occurred?

Mr Keelty-I understand what you mean now. Sorry, I had not read the full cable. Paragraph 7 puts that into context because that is the fishing vessel.

Senator JACINTA COLLINS-Yes. I now want to go to the point that I was asking earlier in relation to the makeshift upper deck, which is at point 3. How did we understand that a makeshift deck had been added to the ship? Did we have intelligence about the ship before the deck had been added?

Mr Keelty-I understand why you have those concerns, and I share those concerns. What troubles me is why, in preparing that answer to your question on notice, this was not referred to. I need to find out why.

Senator JACINTA COLLINS-You now understand that I have a series of broader questions about intelligence which was not brought to our attention earlier but which is now before us-although it is not available for the CMI because that inquiry has closed down-and why that material was withheld, particularly in terms of the level of intelligence we had about the ship before its departure, if that is the case. As I said, there may be some reasonable explanation for the implications that are in this document.

Mr Keelty-For why this has happened, yes. But certainly, Senator, I would just repeat what I said before about the evidence that I have given. I would just point out that last year I answered questions about this on 19 February, 28 May and 20 November before this committee, on 11 July before the Senate Select Committee on A Certain Maritime Incident and on 6 August before the Senate Legal and Constitutional References Committee hearing on migration legislation, and I provided a private briefing to members of this committee on related issues on 23 October, but this is the first I have ever become aware that, according to the cable, there appears to have been radio contact between the vessel and the shore, and whether in fact that extended to where the vessel sank. I do not resile from my earlier evidence in all of those hearings that the AFP did not know the time or point of departure of SIEVX before it went. We had no way of monitoring that. Nor do we know the precise position where it actually sank. I do not think this changes that view, unless there are parts of this which I have not read. If my evidence is not correct, I will advise the committee, as I have done on previous occasions, at the first available opportunity.

Senator JACINTA COLLINS-As I said to you in relation to the radio issue, that opportunity had been taken up-and the response according to this cable was unsatisfactory. There are other issues in this cable that lead to some other questions that I would like dealt with. I am still at a loss that on 23 October we can have intelligence that tells us there was communication between the fishing vessel that collected survivors but it cannot tell us where it collected the survivors from.

Senator Ellison-This is a DFAT cable, I understand, from the look of it. I do not think I have seen it, either, before. But one normally questions the author of a document. You have to remember that Commissioner Keelty is not the author, nor is the AFP, of this document. It is a Foreign Affairs cable, and the reason for certain statements being made is only in the knowledge of the person who sent the cable.

Senator JACINTA COLLINS-Yes. Minister, I understand that aspect of it. I am trying to avoid our having to go in a full circle, because, as Mr Keelty understands, DFAT intelligence is part of what would have informed that cable. So he has the opportunity to address it now, or I go back to DFAT and then I come back again. That would waste everybody's time.

Senator Ellison-I think what Commissioner Keelty is saying is that he will take it on notice and make inquiries. I think that is as far as you can go.

CHAIR-In terms of the proceedings to this point, Senator Collins, I think the minister is right.

Senator JACINTA COLLINS-I agree. When I say he can answer it now, I mean he can take it on notice now-or I can go to DFAT, I can ask it again and then come back again, and that wastes everyone's time.

CHAIR-The commissioner has indicated that he will take it on notice.

Senator JACINTA COLLINS-Mr Keelty, do we have any understanding-again with the caveat not to compromise a pursuit of Abu Qussey-of what happened to the crew?

Mr Keelty-In the absence of any comment from any of my staff here, I understand the crew sank with the vessel.

Senator JACINTA COLLINS-The reason I ask this question is this: if, again, there is the potential that there was radio communication when the vessel was sinking, is there any potential explanation for the lights that some of the survivors report, and what may have happened with the crew? You understand now why I ask that question, I am sure.

Mr Keelty-Yes, Senator. I will take that question on notice with the previous question.

Senator JACINTA COLLINS-I also want to clarify some issues in relation to surveillance. I understand the discussion that occurred at the last estimates, and so please let me know if you think that there are issues of national interest or national security that need to complicate matters. Back in the CMI hearings, when we were investigating what surveillance technology there was and what might be the source of intelligence that could inform us about SIEVX, Commissioner Keelty, you indicated that we do not have any surveillance technology. Would you like to elaborate on precisely what you meant then, given the consequent discussions we have had about whether tracking devices may or may not be used and in view of the IMP surveillance equipment that was provided to the Indonesians? It was presumably surveillance equipment. Were you talking about a narrow `we', or were you saying that in a broader sense in our cooperative relationship with the Indonesians we had no surveillance equipment?

Mr Keelty-You are talking about evidence that I gave over six months ago.

Senator JACINTA COLLINS-Let me give you the reference and you can take it on notice. That is fine.

Mr Keelty-I would be surprised if I gave an answer that the AFP does not have surveillance equipment.

There must be a context for that.

Senator JACINTA COLLINS-Please take it on notice, but at the moment I will read you this excerpt.

This is from page 1962 of 11 July and it is in relation to the information that came back from passengers. You said:

But, if passengers were then returned from whence they came and the information came back that the other passengers drowned or whatever, because we do not have any surveillance technology, the only real way we were dealing with anything was through human sources; it was by word of mouth.

Mr Keelty-Perhaps that was a poor use of tense by me. On reflection and given how you have now read it in context, what I was saying was that we did not have any surveillance technology applied to SIEVX. So the only way we were finding out-which is what I said earlier, based on what I have been briefed as to what had happened-was when the survivors reached shore. You have put a different context to that tonight with the cable. But as for the evidence I gave at the time, as I said to you a brief time ago, my full understanding of this has been that we only ever became aware of what had really happened after the survivors had returned to the mainland.

Senator JACINTA COLLINS-At another stage, for instance, you say on page 1930:

We did not know about the departure of SIEVX until after the vessel had returned. We had no way of surveilling SIEVX as I pointed out earlier. We had no way of receiving any distress call. Is that a narrow `we' or does that `we' include surveillance that the Indonesians may have been conducting with the equipment that we had assisted them with?

Mr Keelty-My recollection is that I was talking about the AFP. If you like, I will take on notice what equipment was provided to the Indonesian National Police and whether that equipment was such that they would have received anything. In the absence of anyone informing me immediately, I am not aware that the Indonesian National Police were supplied with any equipment by the AFP that would have enabled them to have received anything of that nature in terms of surveillance. Let me say this, in case this is what you are asking: the AFP has not, to my knowledge, provided the Indonesian National Police with any technical surveillance equipment, in the absence of someone advising me to the contrary here and now.

Senator JACINTA COLLINS-In answer to question on notice No. 62-

CHAIR-Is that from estimates, Senator Collins?

Senator JACINTA COLLINS-I believe so because it was, I think, in response to Senator Faulkner's questions about surveillance. Yes, it is.

CHAIR-Thank you.

Senator JACINTA COLLINS-The response is:

To enhance the cooperative relationship between AFP and INP on people- smuggling issues, in the period February 2000 to September 2001 LECP funding of $99,800 was provided to the INP to assist with the establishment of a special intelligence unit ... The funding included the provision of computers, facsimile machine communications equipment and basic surveillance equipment.

What would have been meant there by `basic surveillance equipment'?

Mr Keelty-I will check what that means, but I would assume it means simply a surveillance kit, which is a mobile vehicle-it has nothing to do with the sort of surveillance of vessels or anything like that- binoculars, cameras and that sort of equipment. That is my understanding but I will check.

Senator JACINTA COLLINS-So, to your understanding, we have not provided the Indonesians with tracking devices?

Mr Keelty-No.

Senator JACINTA COLLINS-And in the case of SIEVX we did not use them?

Mr Keelty-That is correct.

Senator JACINTA COLLINS-In terms of the cable, the question which I need to ask and which you will need to address on notice is this: is there intelligence in that cable that, to your understanding, relates to information other than that of survivors once they had returned, so it may include surveillance detected by INP but reported after the departure or after the return?

Mr Keelty-I am sorry, it may include surveillance by the INP, did you say?

Senator JACINTA COLLINS-Yes. Can we exclude that possibility? That is the question.

Mr Keelty-I will have an answer prepared for you.

CHAIR-Senator Collins, I understand that the questions that you are asking are extremely important and are of great relevance to the committee in the broadest sense, but at the end of the day the purpose for which we are here is additional estimates. By far the overwhelming majority of your questions do not go to the question of additional estimates.

Senator JACINTA COLLINS-I think I could make them go to additional estimates. It would take a long time to do it but I am sure I could.

CHAIR-Senator Collins, I am just trying to seek some guidance from you as to what period of time the rest of your questioning in this area might take. There are other senators who are members of the committee who wish to continue with questioning on additional estimates.

Senator JACINTA COLLINS-I do not believe I will be much longer. In terms of what else I have, I am happy, given that Mr Keelty needs to take on notice a number of issues, to see if I can put them on notice without going through them here.

CHAIR-I appreciate that. The commissioner has been very helpful in what he has endeavoured to provide to us this evening, so I would appreciate your assistance also. Thank you.

Senator JACINTA COLLINS-If anybody else has questions for the AFP, I am happy to take the next few moments to do that review.

CHAIR-They certainly do. Senator Ludwig certainly has further questions for the AFP which relate to additional estimates.

Senator JACINTA COLLINS-Why don't we go to Senator Ludwig and then I will come back with anything, otherwise I will provide questions in writing. CHAIR-Thank you very much, Senator Collins.


Senator JACINTA COLLINS-I should not be much longer and I may not even have anything to put on notice, but I will leave that open in case I have overlooked something.

Commissioner Keelty, can I just clarify something in relation to the four warrants for Abu Qussey? Are they fresh warrants or are we altering the old ones?

Mr Keelty-No, they are additional, fresh warrants. If you want the details of what they are for, I can give them to you.

Senator JACINTA COLLINS-If you could.

Mr Keelty-The four warrants allege a total of four offences of organising the bringing of groups of unlawful non-citizens into Australia and 76 offences of bringing, or attempting to bring, unlawful non- citizens into Australia contrary to the provisions of sections 232A and 233(1)(a) of the Migration Act 1958.

Senator JACINTA COLLINS-Thank you. I have two issues remaining. One relates to an answer to a question on notice from last estimates about lists of those who boarded SIEVX, those who got off SIEVX early, those who survived the sinking and those who died in the sinking of SIEVX. You indicated in a response to a question that you were aware to some extent of that information. That was more fruitful than my informal contacts with DIMIA. I would like to be provided with a copy of any list that is available in relation to those issues. If there are reasons why some components of that material cannot be made publicly available, I would be interested in why that might be or why there is any difference between the people who were killed in that tragedy and, for instance, those who were killed in the Bali tragedy.

Mr Keelty-Was the question 56(d)?

Senator JACINTA COLLINS-Sorry, I skipped a page. The answer to question 56(e) reads: Following the sinking of SIEV X, the AFP became aware of three lists which detail passengers purported to have boarded the vessel, those that disembarked the vessel shortly after it commenced its journey, and those that survived the tragedy.

Mr Keelty-Are you seeking copies of the lists?


Mr Keelty-Can I take that on notice? I need to know what is on the list and what the origin of the information was, to ensure that it is not material that might be presented before a court, and any other caveats.


Mr Keelty-If I can, I will provide that to you.

Senator JACINTA COLLINS-Thank you. My final matter relates to some material you provided last time, also with respect to intelligence about the company that owned SIEVX. I believe it was reported that the Royal Australian Navy had some investigation there? I will go to the precise question. The answer to question 58 reads:

I am advised that information was also obtained by the RAN from the company found to have owned SIEV X.

Further to that response, what was the name of the company that owned SIEVX? Who were the major shareholders of the company that owned SIEVX? What was the registered name and number of SIEVX? When and where was SIEVX registered? I will not be surprised if your caveat is that we do not want that to compromise our pursuit of Abu Qussey. You may need to make that assessment on notice.

Mr Keelty-I will. Subject to the caveats I mentioned earlier, if there is no reason why I cannot provide it, I will provide it.

Senator JACINTA COLLINS-I hope that is everything I had. If there is anything further, I will put it on notice in the morning.

CHAIR-Thank you very much, Senator Collins. I appreciate your assistance.

Senator JACINTA COLLINS-Sorry, I have one more question. Without addressing the issue of whether tracking devices were or were not used, further to our last conversation, is there any reason why the potential did not exist with SIEVX in any case?

Mr Keelty-Simply because, as I understand it-and subject to correcting this if I need to-we did not know what vessel SIEVX was until after it sank. There was neither the opportunity to do anything with it nor the ability to identify it.

CHAIR-Commissioner Keelty, thank you to you and your colleagues and officers for your assistance this evening. This concludes questions to the Australian Federal Police. There are some further questions from Senator Ludwig which have been placed on notice.

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